R v Ng
[2012] WASCA 180
•17 SEPTEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: R -v- NG [2012] WASCA 180
CORAM: BUSS JA
NEWNES JA
MAZZA JA
HEARD: 6 JULY 2012
DELIVERED : 17 SEPTEMBER 2012
FILE NO/S: CACR 3 of 2012
BETWEEN: THE QUEEN
Appellant
AND
HOOI HEE NG
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :CURTHOYS DCJ
File No :IND 776 of 2011
Catchwords:
Criminal law - Crown appeal against sentence - Respondent convicted of two counts of attempting to possess a marketable quantity of methylamphetamine, contrary to s 11.1(1) read with s 307.6(1) of the Criminal Code (Cth) - One count involved 227.1 g of pure methylamphetamine and the other 383.8 g of pure methylamphetamine - Respondent on bail at the time of the offending in relation to two other identical charges - Total effective sentence of 7 years 6 months' imprisonment being served for the earlier offences - Primary judge imposed individual sentences of 3 years' imprisonment and 3 years 6 months' imprisonment (less time spent in custody) for the offences the subject of the appeal - Individual sentences reduced from 4 years and 4 years 6 months respectively in the application of the totality principle - Whether the individual sentences were manifestly inadequate - Primary judge ordered that the individual sentences be served concurrently with each other but cumulatively upon the earlier sentence of 7 years 6 months' imprisonment still being served by the respondent - Overall total effective sentence 11 years' imprisonment (less time spent in custody) - Whether overall total effective sentence infringed the totality principle
Legislation:
Crimes Act 1914 (Cth), s 16A, s 19(1), s 19AD(2)(e)
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (Cth), s 11.1(1), s 307.2(1), s 307.6(1)
Customs Act 1901 (Cth), s 233B(1)(a)(iii) (repealed), s 233B(1)(b) (repealed)
Result:
Appeal allowed
Respondent re-sentenced
Category: D
Representation:
Counsel:
Appellant: Mr D W L Renton
Respondent: Mr S B Watters
Solicitors:
Appellant: Director of Public Prosecutions (Cth)
Respondent: Patti Chong Lawyer
Case(s) referred to in judgment(s):
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
El-Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208
Govindaraju v The Queen [2011] NSWCCA 255
Iyoha v The Queen [2011] WASCA 46
Kuti v The Queen [2012] NSWCCA 43
Lindsay v The Queen [2012] NSWCCA 124
Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274
Mirza v The Queen [2007] NSWCCA 257
Mohlasedi v The Queen [2006] WASCA 267
Moreton v The State of Western Australia [2011] WASCA 258
Okeke v The Queen [2010] NSWCCA 266
OPQ v The Queen [2012] VSCA 115
Po Kau Lau v The Queen [2011] VSCA 324
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Harris [2009] QCA 370
R v Jimson [2009] QCA 183
R v Maya [2012] QCA 123
R v Mirzaee [2004] NSWCCA 315
R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Onuorah [2009] NSWCCA 238; (2009) 76 NSWLR 1
R v Oprea [2009] QCA 184
R v Pham [2005] NSWCCA 314
R v Todoroski [2010] NSWCCA 75; (2010) 267 ALR 593
Seah v The Queen [2011] NSWCCA 269
Taylor v The Queen [2007] WASCA 146; (2007) 172 A Crim R 430
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
The State of Western Australia v Munda [2012] WASCA 164
Tsen v The Queen [2010] WASCA 21
Viera v The Queen [2006] NSWCCA 401
Youssef v The Queen [2011] NSWCCA 104
BUSS JA: This is a Crown appeal against sentence.
On 2 December 2011, the respondent was convicted, after a trial in the District Court before Curthoys DCJ (the primary judge) and a jury, on two counts in an indictment. The alleged offences were identical.
The counts alleged that on or about 4 January 2011 (in the case of count 1), and on or about 14 January 2011 (in the case of count 2), at Perth, the respondent attempted to commit an offence against s 307.6(1) of the Criminal Code (Cth) (the Code) in that he attempted to possess a marketable quantity of a border controlled drug, namely methylamphetamine, which had been unlawfully imported, contrary to s 11.1(1) of the Code.
The total quantity of methylamphetamine the subject of count 1 was 307.8 g with a purity of 73.8%. The total weight of pure methylamphetamine was 227.1 g.
The total quantity of methylamphetamine the subject of count 2 was 495.9 g with a purity of 77.4%. The total weight of pure methylamphetamine was 383.8 g.
Each count related to a separate parcel containing methylamphetamine which had been imported into Australia through the EMS postal system.
The parcels had been sent from Hong Kong to Australia and could be tracked on the internet using the unique barcode references affixed to the parcels.
The drug the subject of count 1 was concealed within tubs of hand cream. It was intercepted by law enforcement authorities, and the parcel was not delivered. The drug the subject of count 2 was concealed within a golden apple figurine. It was also intercepted by law enforcement authorities, but the authorities replaced the drug with an inert substance, and the parcel was delivered as part of a controlled operation.
The Crown produced evidence that the respondent had used the internet to track the progress of each parcel. When the respondent ascertained that the parcel the subject of count 2 was ready for delivery, he made contact with the delivery driver and arranged to collect the parcel at a location different from that stated on the parcel. After obtaining possession of this parcel, the respondent returned to his home. Later, police searched his home and vehicle and located the golden apple figurine (now empty) together with wrappings used to cover it. The police also located the respondent's laptop computer which revealed the tracking enquiries he had made about both parcels.
On 18 January 2011, the respondent was arrested in relation to counts 1 and 2. He has been in custody since 19 January 2011.
On 19 December 2011, the primary judge sentenced the respondent. He imposed individual sentences of immediate imprisonment, as follows:
(a)as to count 1: 3 years; and
(b)as to count 2: 3 years 1 month and 2 weeks (after taking into account time spent in custody).
The time spent in custody which his Honour took into account was the period between 19 January 2011 and 1 June 2011.
The primary judge ordered that the individual sentences be served concurrently with each other, but cumulatively upon an existing total effective sentence of 7 years 6 months' imprisonment imposed on the respondent on 23 June 2011 for other federal offences. The overall total effective sentence was therefore 10 years 7 months and 2 weeks. His Honour fixed a new single non‑parole period for all of the federal sentences of 6 years 6 months. The term of 7 years 6 months commenced on 1 June 2011.
The existing total effective sentence of 7 years 6 months' imprisonment imposed on the respondent on 23 June 2011
The salient facts relating to the existing total effective sentence of 7 years 6 months' imprisonment imposed on the respondent on 23 June 2011 are as follows.
On 1 June 2011, the respondent was convicted, after a trial in the District Court before Wager DCJ and a jury, on two counts in an indictment. Each count alleged that on 25 February 2010, at Perth, the respondent attempted to commit an offence against s 307.6(1) of the Code in that he attempted to possess a marketable quantity of a border controlled drug, namely methylamphetamine, which had been unlawfully imported, contrary to s 11.1(1) of the Code. These offences were identical to the offences of which the respondent was convicted on 2 December 2011 after the trial before the primary judge and a jury.
As to count 1, on 22 February 2010 two parcels entered Australia from Hong Kong through the EMS postal system. One parcel was addressed to the respondent at Unit 4, 144 Central Avenue and the other to David Hall at 149 Central Avenue. At that time, the respondent was residing at Unit 8, 114 Central Avenue. The parcels contained a total of 119 g of pure methylamphetamine concealed in silica sachets hidden within packets of dried food. The law enforcement authorities replaced the methylamphetamine with an inert substance and the parcels were delivered as part of a controlled operation. The respondent took delivery of them on 25 February 2010.
As to count 2, on 23 February 2010 two further parcels entered Australia from Hong Kong through the EMS postal system. These parcels did not come to the attention of the law enforcement authorities until 25 February 2010. On that day, an undercover officer with the Australian Federal Police masqueraded as an Australia Post employee. He contacted the respondent and arranged to deliver the further parcels to him. When the respondent attempted to take delivery of them he was arrested. The further parcels contained a total of 114 g of pure methylamphetamine. Once again, the drug was concealed in silica sachets hidden within packets of dried food.
Wager DCJ found, for the purposes of sentencing, that:
(a)The value of the methylamphetamine that the respondent attempted to possess, if sold at a street level purity of 14%, was between $356,400 and $416,071 (ts 431).
(b)The evidence was 'consistent with [the respondent] being a post office rather than a dealer' (ts 433). No indicia of dealing were located at the respondent's home, in his motor vehicle or on his computer. Her Honour therefore accepted that there was no evidence that the respondent was a 'direct dealer' (ts 433).
(c)Her Honour was not satisfied, on the evidence, that the respondent was aware of the precise quantity of the methylamphetamine that was imported, but she accepted, on the basis of the respondent's previous involvement with the drug, that he was aware that a significant amount was likely to be contained in the parcels (ts 433).
(d)The importation strategy was sophisticated enough for the respondent to avoid detection unless he was under professional scrutiny (ts 434).
(e)The respondent was a user of methylamphetamine, but her Honour found that there was a 'profit motive' for his involvement in the importation (ts 434).
(f)The respondent was aged 35 at the time of sentencing. He did not have any dependants. The respondent was born in Malaysia, but was a permanent resident of Australia. However, as a result of the convictions, he was likely to be deported (ts 434 ‑ 436).
(g)The respondent had a university degree in science and mathematics. Since completing his education he had been mostly unemployed, apart from short periods when he worked as a labourer. The respondent had no prior criminal record of significance (ts 435).
(h)The respondent began using amphetamines in 2009. His use escalated to three times a week. However, he was able to cease using the drug for about 8 months after being charged with the offences in question (ts 435).
(i)The respondent did not demonstrate any remorse for his offending (ts 432).
On 23 June 2011, Wager DCJ imposed individual sentences of immediate imprisonment, being 4 years in respect of count 1 and 3 years 6 months in respect of count 2. She ordered that the sentences be served cumulatively. The total effective sentence was therefore 7 years 6 months. Her Honour backdated this sentence to 1 June 2011 and fixed a non‑parole period of 4 years 10 months.
The primary judge's sentencing remarks
The primary judge made findings of fact, for the purposes of sentencing, as follows:
(a)The respondent was selling methylamphetamine in one‑ounce units towards the mid‑range of the price scale (ts 362 ‑ 363).
(b)The respondent would have known or reasonably guessed that he was attempting to possess methylamphetamine which had a high degree of purity (ts 363 ‑ 364).
(c)The respondent was aware that he was attempting to possess a 'fairly substantial' amount of pure methylamphetamine with a 'fairly substantial' street value (ts 364).
(d)These convictions were more serious than the respondent's previous two convictions for the same offence (ts 364).
(e)The respondent 'carefully and regularly' monitored on the internet the progress of both parcels and made inquiries to determine where they would be delivered (ts 365 ‑ 366).
(f)The respondent's conduct formed part of a very significant drug enterprise and his role was important (ts 366).
(g)The respondent engaged in the offending for monetary reward (ts 366).
(h)The respondent's involvement in drug dealing was 'far more significant' than was apparent when he was sentenced by Wager DCJ for the previous offences (ts 367).
(i)The respondent was engaged in a systematic course of taking possession of imported methylamphetamine (ts 367).
(j)The respondent was a well‑organised low to mid level dealer (ts 367).
(k)The offences were committed while he was on bail in relation to the offences for which he was convicted on 1 June 2011 after the trial before Wager DCJ and a jury (ts 368).
(l)The value of the methylamphetamine the subject of count 1, if sold at a street level purity of 14%, was between $348,000 and $973,000 (ts 363). The value of the methylamphetamine the subject of count 2, if sold at a street level purity of 14%, was between $587,000 and $1,645,000 (ts 362 ‑ 363).
(m)The respondent was trusted with illicit drugs by people at a high level in the chain of distribution (ts 371). There was nothing to suggest that the respondent was under pressure to participate in drug importation and dealing (ts 371). The respondent was 'not a mere foot soldier akin to a courier near the foot of the hierarchy' (ts 371).
(n)The respondent became addicted to gambling from about 1995. Initially, he attended the casino socially with friends, but gradually he became addicted (ts 369).
(o)During the two‑year period prior to sentencing, the respondent was a 'recreational drug user' (ts 369).
(p)The respondent had no insight into his criminal conduct (ts 371).
The primary judge said in relation to the individual sentences for counts 1 and 2:
Viewed in isolation, having regard to the submissions from the Crown and from the [respondent's] counsel, and the matters I've mentioned above, and those submissions, which I've taken into account, in my opinion, viewed in isolation, a sentence of four years would be appropriate on the first count. That's the smaller amount of drugs.
And viewed in isolation, and having regard to submissions from the Crown and from the [respondent's] counsel, and the other factors I've mentioned, viewed in isolation, a sentence of four years six months would be appropriate on the second count (ts 371‑ 372).
However, his Honour decided that, in the application of the totality principle, the individual sentence for count 1 should be reduced from 4 years to 3 years and the individual sentence for count 2 should be reduced from 4 years 6 months to 3 years 6 months (ts 372 ‑ 373).
The primary judge then further reduced the individual sentence for count 2 by 4 months and 2 weeks to take account of the time the respondent had spent in custody between 19 January 2011 and 1 June 2011. In the result, the individual sentence imposed for count 2 was 3 years 1 month and 2 weeks. As I have mentioned, the term of 7 years 6 months imposed by Wager DCJ commenced on 1 June 2011.
His Honour ordered that the individual sentences for counts 1 and 2 be served concurrently with each other, but cumulatively upon the total effective sentence of 7 years 6 months imposed by Wager DCJ. Accordingly, the overall total effective sentence was 10 years 7 months and 2 weeks. As I have mentioned, his Honour fixed a new single non‑parole period for all of the federal sentences of 6 years 6 months.
The proposed grounds of appeal
The Crown relies on two grounds of appeal.
Ground 1 alleges that the primary judge erred in law by imposing individual sentences that were manifestly inadequate.
Ground 2 alleges that his Honour erred in law by failing properly to apply the totality principle.
On 11 February 2012, Mazza JA granted leave to appeal on each ground.
Ground 1 of the appeal
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
Section 307.6(1) of the Code provides that a person commits an offence if:
(a)the person possesses a substance; and
(b)the substance was unlawfully imported; and
(c)the substance is a border‑controlled drug or border‑controlled plant; and
(d)the quantity possessed is a marketable quantity.
The maximum penalty for this offence is 25 years' imprisonment or 5,000 penalty units, or both.
Section 11.1(1) of the Code provides that a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
By s 16A(1) of the Crimes Act 1914 (Cth), a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. By s 16A(2), in addition to any other matters, the court must take into account such of the matters specified in the subsection as are relevant and known to the court.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only generally guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well‑established by the case law.
I have examined numerous prior cases of offending against s 11.1(1) read with s 307.6(1) of the Code which have at least some features comparable to the respondent's offending. See El-Ghourani v The Queen [2009] NSWCCA 140; (2009) 195 A Crim R 208; R v Onuorah [2009] NSWCCA 238; (2009) 76 NSWLR 1; R v Oprea [2009] QCA 184; R v Harris [2009] QCA 370; R v Todoroski [2010] NSWCCA 75; (2010) 267 ALR 593; Okeke v The Queen [2010] NSWCCA 266; R v Maya [2012] QCA 123; and OPQ v The Queen [2012] VSCA 115.
I have also examined numerous prior cases involving the importation of a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Code, or the importation of a trafficable quantity of a prohibited import (namely, a narcotic substance), contrary to s 233B(1)(a)(iii) (repealed) or s 233B(1)(b) (repealed) of the Customs Act 1901 (Cth). The maximum penalty for these offences is or was 25 years' imprisonment or 5000 penalty units, or both.
These cases include R v Mirzaee [2004] NSWCCA 315; R v Pham [2005] NSWCCA 314; Mohlasedi v The Queen [2006] WASCA 267; Viera v The Queen [2006] NSWCCA 401; Taylor v The Queen [2007] WASCA 146; (2007) 172 A Crim R 430; Mirza v The Queen [2007] NSWCCA 257; R v Jimson [2009] QCA 183; Tsen v The Queen [2010] WASCA 21; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; Iyoha v The Queen [2011] WASCA 46; Youssef v The Queen [2011] NSWCCA 104; Po Kau Lau v The Queen [2011] VSCA 324; Govindaraju v The Queen [2011] NSWCCA 255; Seah v The Queen [2011] NSWCCA 269; Kuti v The Queen [2012] NSWCCA 43; and Lindsay v The Queen [2012] NSWCCA 124.
Offences of attempting to possess unlawfully imported border control drugs are not, of their nature, in a less serious category than offences of importing such drugs. See R v Ferrer-Esis (1991) 55 A Crim R 231, 239; R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 [72(m)]. An offence against s 11.1(1) read with s 307.6(1) of the Code carries the same maximum penalty as an offence against s 307.2(1) of the Code.
It is unnecessary to set out the relevant facts and circumstances of the prior cases I have examined or the sentencing outcomes.
It is fundamental, in sentencing federal offenders for illicit drug offences against the Code, to have regard to comparable cases decided under the relevant provisions of that legislation. I mention this point because the primary judge, in his sentencing remarks, referred to various cases decided in the context of the Misuse of Drugs Act 1981 (WA).
The seriousness of the respondent's offending on the counts for which he was sentenced by the primary judge is readily apparent from the following:
(a)The respondent's criminal behaviour was part of a very significant drug enterprise, his role in the enterprise was important, and he engaged in the offending for monetary reward.
(b)The respondent would have known or reasonably guessed that the methylamphetamine, the subject of counts 1 and 2, had a high degree of purity. Also, he was aware that each attempted possession involved a 'fairly substantial' amount of pure methylamphetamine with a 'fairly substantial' street value (ts 364). When the respondent committed counts 1 and 2 he had already committed the offences for which he was later convicted after the trial before Wager DCJ and a jury. He therefore knew that the previous parcels had contained 119g and 114g of pure methylamphetamine.
(c)The total weight of pure methylamphetamine, the subject of count 1, was 227.1 g and the total weight of pure methylamphetamine, the subject of count 2, was 383.8 g. The value of the drug, the subject of count 1, at street level purity was between $348,000 and $973,000, and the value of the drug, the subject of count 2, at street level purity was between $587,000 and $1,645,000.
(d)The respondent was trusted with the methylamphetamine by people at a high level in the chain of distribution. There was no evidence that he was under any pressure to participate in the enterprise. The respondent was a well‑organised low to middle level dealer. He was not a mere courier.
(e)The respondent pleaded not guilty and went to trial. Although this does not aggravate the seriousness of his offending, it does show an absence of remorse and an unwillingness to accept responsibility for his offending. He has no insight into his criminal conduct.
(f)The respondent committed the offences in question while he was on bail for the other attempted possession offences of which he was convicted after the trial before Wager DCJ and a jury. This reveals a blatant disregard for the law. See The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [165] and Moreton v The State of Western Australia [2011] WASCA 258 [47(d)], and the cases there cited. It underscores the need for personal deterrence.
(g)The respondent is not youthful. He was aged 34 at the time of the offending and was 35 when sentenced.
In my opinion, the individual sentences of 4 years' imprisonment (reduced to 3 years in the application of the totality principle) for count 1, and 4 years 6 months' imprisonment (reduced to 3 years 6 months in the application of the totality principle and further reduced to 3 years 1 month and 2 weeks to take account of time spent in custody) for count 2, were outside the range open to the primary judge on a sound exercise of the sentencing discretion.
The individual sentences for counts 1 and 2 were substantially less than the sentences which have customarily been imposed for offending against s 11.1(1) read with s 307.6(1) of the Code. See [36] above. (I should also mention that the individual sentences imposed by Wager DCJ were also outside the range customarily imposed.)
I am satisfied that the individual sentence imposed by the primary judge for each of counts 1 and 2 was manifestly inadequate. This is apparent when each sentence is evaluated and weighed in the context of the maximum penalty for the offence, the level of seriousness of the respondent's offending, the importance of personal and general deterrence as prominent sentencing factors, and after taking into account the general standards of sentencing applicable to the offence in question and the respondent's personal circumstances.
Ground 1 has been made out.
Ground 2 of the appeal
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
In the present case, neither the Crown nor the respondent challenged the sentence of 7 years 6 months' imprisonment imposed by Wager DCJ on 23 June 2011 for the previous offences. No appeal was brought.
There is no doubt that each of the four offences committed by the respondent was very serious. The weight, purity and value of the methylamphetamine, and issues of personal and general deterrence and appropriate punishment, were of particular importance in determining the overall total effective sentence. The respondent's offending was not ameliorated by any mitigatory factors of significance. His personal circumstances did not justify any leniency. The respondent was part of a very significant drug enterprise, his role in the enterprise was important, his offending was driven by his desire for monetary reward and not by any addiction to illicit drugs, he did not act impulsively, the period of his offending was not transient and the modus operandi demonstrated planning and preparation. Also, the respondent did not evince any remorse and had no insight into his criminal behaviour. Further, the respondent's decision to reoffend while on bail showed a cavalier disregard of (if not contempt for) the law.
In my opinion, the respondent's overall total effective sentence of 10 years 7 months and 2 weeks does not bear a proper relationship to the overall criminality involved in all of the offences (that is, the two counts for which he was sentenced by Wager DCJ and the two counts for which he was sentenced by the primary judge), viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations. The existence of error should be inferred from the sentencing outcome.
Ground 2 has been made out.
The result of the appeal and the re‑sentencing of the respondent
The appeal should be allowed and the sentencing decision of the primary judge should be set aside.
No proper basis exists for applying the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA). See The State of Western Australia v Munda [2012] WASCA 164. Each of the individual sentences for counts 1 and 2 and the overall total effective sentence is substantially less than the sentence that was open on a proper exercise of the sentencing discretion. The errors of which the Crown complains have been established very clearly. This court's intervention is necessary to ensure the observance in this State of proper standards of sentencing for the serious federal offences of which the respondent was convicted.
This court has the materials necessary to re‑sentence the respondent.
A sentence for each offence must be imposed on the respondent that is of a severity appropriate in all the circumstances of the offence. It is necessary to take into account such of the matters set out in s 16A(2) of the Crimes Act as are relevant and known to the court.
After taking into account the applicable maximum penalty, the facts and circumstances of the commission of each offence and all other relevant sentencing factors, I would impose a sentence of 10 years' imprisonment for count 1 and 10 years 7 months and 2 weeks' imprisonment for count 2. I have reduced the term I would otherwise
have imposed for count 2 by 4 months and 2 weeks to take into account the time spent in custody between 19 January 2011 and 1 June 2011.
The new sentences for counts 1 and 2 should be served wholly concurrently with each other, but partly cumulatively upon the sentence of 7 years 6 months' imprisonment imposed by Wager DCJ.
Pursuant to s 19(1) of the Crimes Act, I would order that the new sentences for counts 1 and 2 commence on 1 June 2014. The overall total effective sentence is therefore 13 years 7 months and 2 weeks.
Pursuant to s 19AD(2)(e) of the Crimes Act, and after taking into account:
(a)the existing non‑parole period, the nature and circumstances of the offences in question and the respondent's antecedents; and
(b)all sentencing factors relevant to the fixing of a non‑parole period (see Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274 [106] ‑ [111]),
I would fix a single non‑parole period, in respect of all federal sentences the respondent is to serve or complete, of 8 years 6 months.
This is, in my opinion, the minimum period of imprisonment that justice requires the respondent to serve. The new single non‑parole period is to be taken to have commenced on 1 June 2011 (being the date of commencement of the term of 7 years 6 months imposed by Wager DCJ).
NEWNES JA: I agree with Buss JA.
MAZZA JA: I agree with Buss JA.
20
31
4